the fate of the native hawaiians: the special relationship

University of Richmond Law Review

Volume 35 | Issue 1 Article 7

2001

The Fate of the Native Hawaiians: The SpecialRelationship Doctrine, the Problem of StrictScrutiny, and Other Issues Raised by Rice v.CayetanoWilliam E. SpruillUniversity of Richmond

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Recommended CitationWilliam E. Spruill, The Fate of the Native Hawaiians: The Special Relationship Doctrine, the Problem of Strict Scrutiny, and Other IssuesRaised by Rice v. Cayetano, 35 U. Rich. L. Rev. 149 (2001).Available at: http://scholarship.richmond.edu/lawreview/vol35/iss1/7

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THE FATE OF THE NATIVE HAWAIIANS: THE SPECIALRELATIONSHIP DOCTRINE, THE PROBLEM OFSTRICT SCRUTINY, AND OTHER ISSUES RAISED BYRICE V CAYETANO

I. INTRODUCTION

Harold "Freddy" Rice is a Native Hawaiian in the sense that hewas born in the Hawaiian Islands and can "trace[ ] his ancestry totwo members of the legislature of the Kingdom of Hawaii, prior tothe Revolution of 1893."1 He is a taxpayer and a qualified electorof the United States, the State of Hawaii, and the County of Ha-waii.2 When Rice applied to vote in the 1996 election for the trus-tees of the Office of Hawaiian Affairs ("OHA"), however, his ap-plication was denied.4 Why? Because, according to a state statute,he was not Hawaiian enough.5

Almost a century before Rice was denied a vote in the OHAelections, the last queen of Hawaii signed an official protest to theUnited States Annexation Resolution,6 in which the Republic of

1. Rice v. Cayetano, 963 F. Supp. 1547, 1548 (D. Haw. 1997), affd, 146 F.3d 1075(9th Cir. 1998), rev'd, 528 U.S. 495 (2000).

2. Id.3. The OHA is a state agency designed to improve the living conditions of Native

Hawaiians using revenues from ceded lands. See HAW. CONST. art. XII, § 5.

4' Rice, 528 U.S. at 498.5. See HAW. REv. STAT. § 13D-3 (1993) (defining the electorate allowed to vote as in-

cluding only "Hawaiians" and "Native Hawaiians"). The pertinent part of the Code of Ha-waii defines "Hawaiians" as "any descendant of the aboriginal peoples inhabiting the Ha-waiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in

1778, and which peoples thereafter have continued to reside in Hawaii." Id. § 10-2. "NativeHawaiians" are defined as "any descendant of not less than one-half part of the races in-habiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Com-mission Act, 1920, as amended." Id. The Supreme Court opinion also includes a discussionof the various definitions critical to the case. Rice, 528 U.S. at 509-10.

6. Lili'uokalani, Official Protest to the Treaty of Annexation (June 17, 1897) avail-able at httpl//www.hawaii-nation.org/treatyprot.html. Lili'uokalani also protested the An-nexation Act because it confiscated 4,000,000 acres of Hawaiian lands that were

technically called the crown lands, those legally entitled thereto... receivingno consideration whatever for estates, their title to which has been always

149

150 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 35:149

Hawaii ceded 1,800,000 acres of "public, Government, or Crownlands" to the United States.' In her written protest, signed inWashington, D.C., on June 17, 1897, Queen Lili'uokalani pro-nounced the annexation "wrong toward the native and part-native people of Hawaii" and "an act of gross injustice."'

Queen Lili'uokalani's declaration echoed the hopes of all worldleaders: that their nations' sovereignties are immortal. Historyoffers a different story, however, one of bigger sovereigns swal-lowing up smaller ones in pursuit of geographic and culturaldominance. A century after England's Captain Cook made land-fall in Hawaii in 1778,9 Queen Lili'uokalani's monarchy was over-thrown with the aid of American forces.' ° Later, in 1898, Americasuccessfully annexed Hawaii and established the islands as aseparate Republic to be part of the United States." The Admis-sion Act of 1959 sealed Hawaii's fate by establishing it as Amer-ica's fiftieth state. 2

If Native Hawaiians felt their sovereignty besmirched byAmerican encroachment, perhaps they found some solace in a1993 Joint Resolution in which Congress officially apologized forAmerica's participation in "the illegal overthrow of the kingdomof Hawaii."8

The foregoing has a good deal to do with Harold "Freddy"

undisputed, and which is legitimately in my name at this date.

[The] treaty ignores, not only all professions of perpetual amity and goodfaith made by the United Staets [sic] in former treaties with the sovereignsrepresenting the Hawaiian people, but all treaties made by those sovereignswith other and friendly powers, and it is thereby in violation of internationallaw.

Id. The Annexation Resolution may be found at J. Res. 55, 55th Cong., 30 Stat. 750(1898).

7. J. Res. 55, 55th Cong., 30 Stat. 750 (1898).8. Lili'uokalani, supra note 6, at 1. See generally HELENA G. ALLEN, THE BETRAYAL

OF LILi'uOKALANI: LAST QUEEN OF HAWAII 1838-1917 (1982); The American Perspective:Lili'uokalani's Legacy (PBS television broadcast, 1990). Of the fate of Hawaiian sover-eignty, Queen Lili'uokalani wrote: "The cause of Hawaii and independence is larger anddearer than the life of any man connected with it. Love of country is deep-seated in thebreast of every Hawaiian, whatever his station." Hawaii: Independent & Sovereign, avail-able at http://www.hawaii-nation.org (last visited Nov. 4, 2000).

9. RALPH S. KUYKENDALL & A. GROVE DAY, HAWAII: A HISTORY 14 (2d ed. 1949).10. Rice v. Cayetano, 528 U.S. 495, 505 (2000).11. Id.12. See id.13. Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510, 1513 (1993).

HAWAII STATUTE

Rice.' 4 It paints in broad strokes the historical context behindRice v. Cayetano, a case in which the Supreme Court struckdown a Hawaii voting restriction that permitted only personswith Native Hawaiian blood to vote for the trustees of the OHA.'6

A case that mixes race, history, and evolving constitutionaldoctrine, Rice reflects the Rehnquist Court's crusade against gov-ernment programs that offer preferences to racial minorities whohave faced discrimination in the past. 7 It also marks the firsttime the Court has used the Fifteenth Amendment, which wasadopted after the Civil War to protect African-Americans, to pro-tect the voting rights of a white man. 8

In Rice, the Supreme Court expressly avoided a ripe opportu-nity to articulate what, if any, special relationship Native Ha-waiians enjoy with the federal government. Specifically, theCourt rejected out-of-hand the notion that Native Hawaiians areanalogous to Indian tribes and are thereby entitled to the sametypes of self-governmental programs with racial preferences asthe Indians. 9 Reversing both the District Court for the District ofHawaii and the Ninth Circuit Court of Appeals,2" the SupremeCourt declined to even consider whether Native Hawaiians areNative Americans in the legal sense.2' Put another way, theCourt was blind to the more than 160 congressional laws that ex-pressly include Native Hawaiians in the same category as Native

14. See Linda Greenhouse, Justices to Weigh Race Barrier in Hawaiian Voting, N.Y.TnfEs, Mar. 23, 1999, at A18.

15. 528 U.S. 495 (2000).16. Id. at 495-97.17. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of Rich-

mond v. J.A. Croson Co., 488 U.S. 469 (1989); see also Joan Biskupic, Hawaiian VotingLimit Rejected; Court Strikes Down Race-Based Selection of Agency Trustees, WASH. POST,Feb. 24, 2000, at A9.

18. Biskupic, supra note 17.19. Rice, 528 U.S. at 518-19. Compare Stuart Minor Benjamin, Equal Protection and

the Special Relationship: The Case of the Native Hawaiians, 106 YALE L.J. 537 (1996) (ar-guing that under current Supreme Court jurisprudence, government programs designed tobenefit Native Hawaiians must be analyzed under the most heightened level of scrutiny),with Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 YALE L. &POLaY REV. 95 (1998) (arguing that programs designed to benefit Native Hawaiians shouldbe examined using the same level of review that applies to programs for other NativeAmericans). For purposes of clarity and simplicity, the terms "Native American" and "In-dian" are used synonymously in this note, except where a distinction is warranted.

20. Rice, 528 U.S. at 511.21. Id. at 518.

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Indians, thus according them the same special protection.22

Native American jurisprudence makes clear that the Indiantribes enjoy a "quasi-sovereign," or "special relationship," with thefederal government. 3 This "special relationship" tends to militateagainst equal protection challenges to government programs withpreferences designed to benefit Indians.24 Accordingly, the Courthas routinely upheld government programs that give preferencesto Indian tribes since such classifications are rooted not in racialclassifications, but in political or legal status.2

Because the classification of Native Americans is not racial, theCourt has applied mere rational basis review analysis to govern-ment programs that single out Native Americans for specialtreatment.26 Under the rational basis review scheme, the gov-ernment need only show that a particular program is reasonablyand rationally tied to the advancement of a governmental interestfor a court to uphold the constitutionality of the program.

Because the Court in Rice refused to articulate whether NativeHawaiians enjoy the same "special relationship" with the gov-ernment as the Indian tribes and are thus Native American inthe legal sense, it unbegrudgingly applied strict scrutiny to Ha-waii's voting law and struck it down as unconstitutional on Fif-teenth Amendment grounds. 2' By applying the most severe levelof scrutiny to Hawaii's voting law, the Court's decision in Rice

22. See infra note 103.23. See, e.g., Washington v. Confederated Bands & Tribes of the Yakima Indian Na-

tion, 439 U.S. 463, 500-01 (1979) ("'[Tjhe unique legal status of Indian tribes under federallaw permits the Federal Government to enact legislation singling out tribal Indians, leg-islation that might otherwise be constitutionally offensive.'") (quoting Morton v. Mancari,417 U.S. 535, 551 (1974)); United States v. Antelope, 430 U.S. 641, 645 (1977); UnitedStates v. Mazurie, 419 U.S. 544, 557 (1975) ("Indian tribes are unique aggregations pos-sessing attributes of sovereignty over both their members and their territory.") (construingWorcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832)). According to the court in Mancari:

Literally every piece of legislation dealing with Indian tribes ... single[s] outfor special treatment a constituency of tribal Indians .... If these laws, de-rived from historical relationships and explicitly designed to help only Indi-ans, were deemed invidious racial discrimination, an entire Title of theUnited States Code (25 U.S.C.) would be effectively erased and the solemncommitment of the Government toward the Indians would be jeopardized.

Mancari, 417 U.S. at 552 (1974).24. See Yakima, 439 U.S. 463; Antelope, 430 U.S. 641; Mazurie, 419 U.S. 544.25. See Yakima, 439 U.S. 463; Antelope, 430 U.S. 641; Mazurie, 419 U.S. 544.26. See Yakima, 439 U.S. 463; Antelope, 430 U.S. 641; Mancari, 417 U.S. 535.27. See Yakima, 439 U.S. 463; Antelope, 430 U.S. 641; Mancari, 417 U.S. 535.28. Rice, 528 U.S. at 522.

HAWAII STATUTE

raises serious doubts about the future of programs designed tobenefit Native Hawaiians. For one, the decision calls into ques-tion whether various lower court decisions which recognize thatNative Hawaiians have the same legal status as other nativepeoples would survive if challenged in the wake of Rice.29

Another reading of the case suggests, however, that the Ricedecision is but a logical reaffirmation of the Court's reasoning inits recent redistricting cases, ° which sharply define the Constitu-tion's strict prohibition against using race as a condition of vot-ing.

31

Still, fear that future legislation designed to benefit NativeHawaiians will face strict scrutiny in the courts may be legiti-mate for one principal reason. The Court refused to hear Rice'sequal protection claim, arguing instead that Hawaii's voting lawran patently afoul of the Fifteenth Amendment.32 The Court nev-ertheless assumed, without deciding, that Hawaii could treat Na-tive Hawaiians as an Indian tribe.33 Thus, the Court's applicationof strict scrutiny suggests, albeit implicitly, that programs de-signed to benefit Native Hawaiians will be subject to this mostexacting level of review in the future.

The Rice decision is also quite significant in light of the impor-tant issues with which the Court chose not to wrestle: namely,whether the Native Hawaiians enjoy equal status with the fed-eral government as Native Indians specifically, and NativeAmericans generally.34 In short, the Court's silence on this impor-tant issue suggests that Native Hawaiians are not Native Ameri-cans, do not enjoy the same "special relationship" with the federalgovernment as the Indian tribes, and are not subject to the samerights and privileges of tribal Indian sovereigns.

This note examines the analysis behind, and potential impactof, the Rice decision. Part II provides a brief history of the Fif-teenth Amendment and its evolution since its post-Civil War

29. See, e.g., Ahuna v. Dep't of Hawaiian Home Lands, 640 P.2d 1161, 1168-69 (Haw.1982).

30. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993) (concerning North Carolina congres-sional districts).

31. See infra note 42.32. Rice, 528 U.S. at 522.33. See id. at 524 (Breyer, J., concurring).34. Id. at 518.

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adoption. Part III discusses the historical backdrop of Rice, in-cluding an overview of the significant historical events under-girding the law as it applies to Native Hawaiians. The Rice deci-sion itself is set forth and explained in Part IV. Part V analyzesand critiques the Rice decision; emphasis is placed on the com-peting interests involved in the case, and whence those interestsfind legal support. Finally, Part VI discusses the impact of theRice decision on future challenges to laws designed to benefit Na-tive Hawaiians specifically, and Native Americans generally.

II. THE LAW LURKING BEHIND THE VOTING FRANCHISE

A. Color Blind Democracy? The Fifteenth Amendment

The right to vote is a firmly rooted right essential to the orches-tration of American democracy. The Supreme Court has soundedthis chorus by holding that the voting right is "preservative ofother basic civil and political rights."35 While the right to vote is afundamental one, various amendments have been added to theU.S. Constitution that both circumscribe and expand the fran-chise's force and effect.36 These amendments essentially amountto restrictions on the abilities of states to impose franchise re-quirements on voting schemes.37 For example, the NineteenthAmendment prohibits gender discrimination in voting,3" theTwenty-Fourth Amendment prohibits the states from imposing apoll tax as a condition of voting,39 and the Twenty-Sixth Amend-ment grants the right to vote to all citizens over the age of eight-een.40

Adopted in 1870 as the last of the Civil War Amendments,4' the

35. Reynolds v. Sims, 377 U.S. 533, 562 (1964).36. See generally JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW §

14.31 (5th ed. 1995).37. See id.38. U.S. CONST. amend. XIX, § 1 ("The right of citizens of the United States to vote

shall not be denied or abridged by the United States or by any State on account of sex.").39. U.S. CONST. amend. XXIV, § 1 ("The right of citizens of the United States to vote

in any primary or other election... shall not be denied or abridged by the United Statesor any State by reason of failure to pay any poll tax or other tax.").

40. U.S. CONST. amend XXVI, § 1 ("The right of citizens of the United States, who areeighteen years of age or older, to vote shall not be denied or abridged by the United Statesor by any State on account of age.").

41. The Civil War Amendments, added to the Constitution to help remedy the une-

HAWAII STATUTE

Fifteenth Amendment prohibits states from abridging or denyinga citizen's right to vote on the basis of race." Despite the expresslanguage of the Fifteenth Amendment, over the years states havedevised clever, and sometimes not so clever, schemes that dis-criminate against minorities.'

In the White Primary Cases, the Court made clear that a statecould not exclude a minority race from the voting franchise.' TheWhite Primary Cases represent the premise that "all integralsteps in an election for public office are public functions andtherefore state action subject to some constitutional scrutiny."45

In sum, these cases hold that "an election for public office is apublic function and that any integral part of that function mustconform to the Constitution."46

Some of the White Primary Cases involved elections by politi-cal parties for purposes of future general elections.' In Grovey v.Townsend,' the Court upheld a voting restriction based on race.49

The Court noted that no state laws existed that governed statepolitical parties, and the fact that the Texas Democratic Conven-tion barred blacks from voting in its primaries did not constitute

qual vestiges of slavery, also include the Thirteenth and Fourteenth Amendments. Seegenerally NOWAK & ROTUNDA, supra note 36, § 14.7. The Thirteenth Amendment providesthat "Inleither slavery nor involuntary servitude, except as a punishment for crimewhereof the party shall have been duly convicted, shall exist within the United States, orany place subject to their jurisdiction." U.S. CONST. amend. XIII, § 1. The FourteenthAmendment was added partly to ensure that former slaves could become fifll U.S. citizensand to entitle them to due process and equal protection. U.S. CONST. amend. XIV, § 1. SeeNOWAK & ROTUNDA, supra note 36, § 14.7 at 642-43.

42. U.S. CONST. amend. XV, § 1 ("The right of citizens of the United States to voteshall not be denied or abridged by the United States or by any State on account of race,color, or previous condition of servitude.").

43. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) (involving a gerrymanderedcity district designed solely to fence out black voters from municipal boundaries and denythem the right to vote in city elections); Terry v. Adams, 345 U.S. 461 (1953) (involving aprimary conducted by a private organization operating without the color of state aid, andexcluding blacks from participation); Smith v. Allwright, 321 U.S. 649 (1944) (involving aparty convention resolution forbidding blacks from voting in a party primary regulated bythe state) [hereinafter White Primary Cases].

44. NOWAK & ROTUNDA, supra note 36, § 14.31 at 878.45. NOWAK & ROTUNDA, supra note 36, § 14.33 at 896.46. NOWAK& ROTUNDA, supra note 36, § 14.33 at 898.47. Terry, 345 U.S. 461; Allwright, 321 U.S. 649.

48. 295 U.S. 45 (1935).49. Id. at 55.

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state action.5' Less than a decade later, the Court overruled

Grovey.51

In Smith v. Allwright,52 the Court struck down a resolutionthat prohibited African-Americans from voting in a party primaryregulated by the state.53 The Court reasoned that when a statedelegated to a political party the power to create voting qualifica-tions, the state had in essence turned the party's action into stateaction.

54

The Court broadened its analysis of racial requirements inelections in Terry v. Adams,55 a case that involved a racially dis-criminatory primary held by a party operating without the colorof state action. 6 The private primary was held for the purpose ofexcluding African-Americans prior to the Democratic primary.'The fact that the private party did not act under the color of stateaction did not seem to bother the Court. Writing for the majority,Justice Black held that the mere fact that a state allowed a pri-vate device-the racial bar to African-Americans--otherwise for-bidden in a state election, violated the Fifteenth Amendment."

In Gomillion v. Lightfoot,59 the Court considered whether anAlabama statute that altered the shape of the city of Tuskegeefrom a square to a twenty-eight sided figure, effectively excludingsome 400 black voters (but no white voters) from the city, violatedthe Fifteenth Amendment.60 The Court, recognizing both the ra-cial effect of and the purpose behind the law, held that it was un-constitutional.6

50. Id. at 52-53.51. See Allwright, 321 U.S. at 666.52. 321 U.S. 649 (1944).53. Id. at 656-57, 666.54. Id. at 664-65 (stating that the constitutional "grant to the people of the opportu-

nity for choice is not to be nullified by a State through casting its electoral process in aform which permits a private organization to practice racial discrimination in the elec-tion").

55. 345 U.S. 461 (1953).56. See id. at 463.57. Id. at 464.58. Id. at 469.59. 364 U.S. 339 (1960).60. Id. at 340-41.61. Id. at 347-48.

HAWAII STATUTE

More recently, in Shaw v. Reno,62 the Court considered whetherNorth Carolina's legislative map for the election of members ofCongress, which promoted the interests of minority voters, consti-tuted an offense to the Fourteenth Amendment's equal protectionclause.63 The map created two congressional districts with Afri-can-American majorities, one of which was 160 miles long and,according to the majority, "no wider than the 1-85 corridor."' In afive-four decision, the Court held that those opposing the gerry-mandered districts had effectively made out a FourteenthAmendment claim.65 However, the Court stated that race-conscious decision-making may be permissible in certain circum-stances.66 For example, if the state had created reasonably com-pact second majority-minority districts that followed politicalsubdivision lines, the district map may have withstood a Fif-teenth Amendment challenge.67 However, the mere fact that thestate used race as the only criteria for one of the districts com-pelled strict scrutiny, the most heightened level of review, dis-cussed in Part V.

Shaw represents a departure from traditional challenges to thevoting franchise inasmuch as the Court gave greater weight tothe Fourteenth Amendment's equal protection guarantee than tothe facial constraints imposed by the Fifteenth Amendment.6"Writing for the majority, Justice O'Connor implied that all Fif-teenth Amendment challenges necessarily involve equal protec-tion inquiries.69 Indeed, Justice O'Connor crystallized the verymeaning of the Fifteenth Amendment and its implicit equal pro-tection guarantee as follows:

Racial classifications of any sort pose the risk of lasting harm to oursociety. They reinforce the belief, held by too many for too much ofour history, that individuals should be judged by the color of theirskin. Racial classifications with respect to voting carry particulardangers. Racial gerrymandering, even for remedial purposes, maybalkanize us into competing racial factions; it threatens to carry us

62. 509 U.S. 630 (1993).63. Id. at 633-34, 642.64. Id. at 635.65. Id. at 642.66. Id.67. See id. at 657.68. Id. at 642.69. Id.

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further from the goal of a political system in which race no longermatters-a goal that the Fourteenth and Fifteenth Amendmentsembody, and to which the Nation continues to aspire. 70

It is quite clear, then, that the Fifteenth Amendment acts as acomplete bar to using race as a condition of voting. The amend-ment's evolution over the last century demonstrates the Court'sprogression toward extinguishing the socio-political indignitiesthat characterized the Civil War era. While the FifteenthAmendment is both expressly clear and unambiguous in its lan-guage, we shall see instances where the Court, and Congress,have carved out exceptions to the voting franchise.

B. Interested Voters: The Special Purpose Election

While four constitutional amendments place restrictions on theability of states to impose conditions on the voting franchise,"' theSupreme Court originally interpreted the U.S. Constitution tosuggest that states possess an inherent constitutional authorityto control the electoral process.72

For instance, despite the Fifteenth Amendment's blanket pro-hibition against using race as a condition of voting, the SupremeCourt has suggested that a state might legitimately limit an elec-tion to interested voters and restrict the electorate to only thosecitizens on whom the election would have a disproportionate im-pact.73

70. Id. at 657.71. Specifically, the Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth

Amendments. See supra notes 38-42 and accompanying text.72. See generally NOWAK & ROTUNDA, supra note 36, § 14.31. Article I, Section 2 of

the Constitution requires electors for members of the House of Representatives to meetthe same qualifications as "[e]lectors of the most numerous Branch of the State Legisla-ture." U.S. CONST. art. I, § 2. Article II, Section one, along with the Twelfth and TwentiethAmendments, lay out the process for electing the President and Vice President. U.S.CONST. art. II, § 1. Specifically, states are given discretion in the manner of selecting themembers of the Electoral College. Id. Article II, Section 1 states, in pertinent part:

Each state shall appoint, in such Manner as the Legislature thereof may di-rect, a Number of Electors, equal to the whole Number of Senators and Rep-resentatives to which the State may be entitled in the Congress: but no Sena-tor or Representative, or Person holding an Office of Trust or Profit under theUnited States, shall be appointed an Elector.

Id.73. See, e.g., Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969).

HAWAII STATUTE

In Salyer Land Co. v. Tulare Lake Basin Water Storage Dis-trict,4 residents of a California water storage district challengedthe constitutionality of a voter qualification that allowed onlylandowners to vote in storage district elections. 5 The Court per-mitted the voting scheme for officers of the water storage district,limited as it was to landowners, with each vote cast assessed pro-portionately to the value of the landowner's land. 6 Taking a morecircumscribed view of the election's "purpose," the Court foundthat the water storage district possessed limited authority, pro-viding "no other general public services such as schools, housing,transportation, utilities, roads, or anything else of the type ordi-narily financed by a municipal body."7"

The Court explained its "disproportionate" impact theory, not-ing "[niot only does the district not exercise what might bethought of as 'normal governmental' authority, but its actionsdisproportionately affect landowners." 8

Thus, in Salyer and its progeny,79 the Court has articulated anexception to state-imposed conditions on voting where the elec-tion being held has a limited purpose which disproportionatelyimpacts a particular group. In such a case, the franchise may belimited to that group. These exceptions expressly divorce fromtheir operation the "one person, one vote" mandate of the Four-teenth Amendment. °

It is important to note that the "special purpose election" ex-ception has not, so far, been applied in instances where the groupon whom an election disproportionately impacts is a racially dis-tinct class. The definitional character of the electorate in "specialpurpose elections" has to do only with ownership of real property.

III. ALOHA: WELCOME TO AMERICA-HISTORY

By 500 A.D., large bands of Polynesians from the South Pacific

74. 410 U.S. 719 (1973).75. Id. at 724-25.76. Id. at 729.

77. Id. at 728-29.78. Id. at 729.79. See Ball v. James, 451 U.S. 355 (1981); Hill v. Stone, 421 U.S. 289 (1975).

80. See Rice v. Cayetano, 528 U.S. 495, 522 (2000).

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had reached and settled in Hawaii."' Over the following centuries,the Hawaiian way of life developed a sophisticated governmentalstructure, a distinct social organization, and an economic systemlargely characterized by wealthy chieftains who presided overfeudal holdings.8 2 The U.S. Congress has stated that "prior to thearrival of the first Europeans in 1778, the Native Hawaiian peo-ple lived in a highly organized, self-sufficient, subsistent socialsystem based on communal land tenure with a sophisticated lan-guage, culture, and religion." 3

When Captain Cook made landfall in the Sandwich Islands in1778, at the same time the American colonies were fighting fortheir own independence 5,000 miles away, the Native Hawaiianpopulation exceeded 300,000.84 At this time, there existed in Ha-waii "a feudal type of land ownership system" in which "tenantswere considered to have 'rights' with respect to the land." 5

In 1893, the Kingdom of Hawaii was overthrown with the aid ofAmerican forces.86 An interim government known as the Republicof Hawaii was set up in opposition to the Hawaiian governmentunder Hawaii's last ruler, Queen Lili'uokalani.87 The Republic,eager for Hawaii to join American statehood, ceded 1,800,000acres of crown, government, and public lands to the United States"without the consent of or compensation to the Native Hawaiianpeople... or their sovereign government."8

As part of the Hawaii Admission Act, 9 the United States re-quired Hawaii to adopt the Hawaiian Homes Commission Act of1920 ("HHCA"), 9 ° which set aside certain lands for the "rehabili-tation of Native Hawaiians."9 Specifically, under the provisionsof the HHCA, the United States returned to Hawaii 200,000 acres

81. KUYKENDALL & DAY, supra note 9, at 5.82. Id. at 7.83. Apology Resolution, 107 Stat. at 1510.84. Brief of Amici Curiae The Hou Hawaiians and Maui Loa Native Hawaiian Benefi-

ciaries at 5, Rice v. Cayetano, 528 U.S. 495 (2000) (No. 98-818).85. Id.86. See Apology Resolution, 107 Stat. at 1510; see also KUYKENDALL & DAY, supra

note 9, at 177-78.87. See KUYKENDALL & DAY, supra note 9, at 174-79.88. Apology Resolution, 107 Stat. at 1512.89. Hawaii Admission Act of 1959, Pub. L. No. 86-83, 73 Stat. 4 (1959).90. Hawaiian Homes Commission Act of 1920, ch. 42, 42 Stat. 108 (1921). The HHCA

is incorporated into section 4 of the Hawaii Admission Act. Hawaii Admission Act § 4.91. Rice v. Cayetano, 963 F. Supp. 1547, 1551 (D. Haw. 1997).

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of the 1,800,000 acres originally ceded for the betterment of Na-tive Hawaiians92 "[a]s a compact with the United States relatingto the management and disposition of [those lands]."" The UnitedStates required Hawaii to incorporate the HHCA into its ownstate constitution. 94 In addition, Congress conveyed to Hawaii thebulk of the other lands ceded to the United States in 1898 and re-quired that Hawaii hold the lands in a "public trust" for "the bet-terment of the conditions of Native Hawaiians, as defined in the[HHCA]."95 Under the HHCA, "Native Hawaiian" was defined toinclude "any descendant of not less than one-half part of the bloodof the races inhabiting the Hawaiian Islands previous to 1778." "9

The legislative history behind the HHCA makes clear thatCongress likened Native Hawaiians to Indian tribes by declaringthat "previous enactments granting [American] Indians... spe-cial privileges in obtaining and using public lands" justified theHHCA. 7 Congress has also stated that "[i]n recognition of thespecial relationship which exists between the United States andthe Native Hawaiian people, [it] has extended to Native Hawai-ians the same rights and privileges accorded to American Indian,Alaska Native, Eskimo, and Aleut communities.""8

In 1978, Hawaii amended its constitution to establish the OHAto better "address the needs of the aboriginal class of people ofHawaii."99 By statute, the OHA was charged with using twentypercent of the proceeds from the 1,800,000 acres returned to Ha-waii under the Admission Act solely for the benefit of Native Ha-waiians.' °

The amendment gave the OHA the power to administer the re-sulting trust.'0 ' The amendment also required that all officers ofthe OHA be "Hawaiians" and that only "Hawaiians," as defined

92. See Hawaiian Homes Commission Act § 203.93. Hawaii Admission Act § 4.94. Id.95. Id. §§ 5(b), (f).96. Hawaiian Homes Commission Act § 201(7) (omitted from 48 U.S.C. § 691 in light

of Hawaii's admission into Union).97. H.R. REP. No. 66-839, at 11 (1920).98. Native Hawaiian Education Act, 20 U.S.C. § 7902(13) (1994) (emphasis added).99. HAw. REV. STAT. § 10-1(a) (1993).

100. See id. §§ 10-3(1), -13.5 (1993).101. HAw. CONST. art. XII, § 6.

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by the law, would be allowed to vote for the OHA trustees. 10 2 Theterm "Hawaiian" was added to bring state law "in line with thecurrent federal policy of the Federal government to extend bene-fits for Hawaiians to all Hawaiians regardless of blood quan-tuM."

103

IV. THE CASE

A. Procedural History

1. The District Court

Rice, who is no more a "Native Hawaiian" than the "descen-dants of Miles Standish are American Indians," °4 sued Hawaii in

102. Id. See supra note 5 for the statutory definitions of "Hawaiian" and "Native Ha-waiian."

103. 16 U.S.C. § 470w(17) (1994) (emphasis added); see, e.g., Apology Resolution, 107Stat. at 1513. Congress has enacted a myriad of laws that classify Native Hawaiians asNative Americans and include them in Native American benefit programs. See, e.g.,Workforce Investment Act of 1998, 29 U.S.C. § 2911 (Supp. 1998) (regarding employmentprograms for Native Hawaiians and other Native Americans); Drug Abuse Prevention,Treatment, and Rehabilitation Act, 21 U.S.C. § 1177(d) (1994) (giving preferences to po-tential grantees-this law is targeted to fight drug abuse among Native Americans, whichunder this law includes Native Hawaiians); National Historic Preservation Act, 16 U.S.C.§ 470a(d)(6) (1994) (providing protection to properties with cultural and religious impor-tance to Indian tribes and Native Hawaiians); National Museum of the American IndianAct, 20 U.S.C. §§ 80q to 80q-12, 80q-14 (1994) (requiring the return of Native Hawaiianhuman remains and funerary objects, as well as the creation of a museum exclusively forthe preservation and study of the history and artifacts of Native Americans, a group of in-dividuals statutorily defined to include Native Hawaiians); Native Hawaiian EducationAct, 20 U.S.C. §§ 7901-7912 (1994) (aimed at facilitating the education of Native Hawai-ians); Native American Languages Act, 25 U.S.C. §§ 2901-2906 (1994) (including NativeHawaiian languages in the group of Native American languages accorded statutory pro-tection); Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013(1994) (requiring the return of Native Hawaiian Human remains and funerary objects); 42U.S.C. § 254s (1994) (providing for health care scholarships for Native Hawaiian stu-dents); American Indian Religious Freedom Act, 42 U.S.C. § 1996 (1994) (promising topreserve Native Hawaiian religious beliefs as a subset of religions described in the statu-tory heading as "Native American"); Native American Programs Act of 1974, 42 U.S.C. §§2991-2992 (1994) (including Native Hawaiians in an array of Native American financialand benefit programs); Comprehensive Alcohol Abuse and Alcoholism Prevention, Treat-ment, and Rehabilitation Act of 1970, 42 U.S.C. § 4577(c)(4) (1994) (giving preferences toapplications targeted at fighting drug abuse among Native Hawaiians and other NativeAmericans); Native Hawaiian Health Care Improvement Act, 42 U.S.C. §§ 11701-11714(1994) (facilitating the improvement of health care for Native Hawaiians); Cranston-Gonzalez National Affordable Housing Act, Pub. L. No. 101-625, § 958, 104 Stat. 4079,4422-23 (1990) (giving preferences for Native Hawaiians in HUD housing assistance pro-grams).

104. Respondent's Brief at 11, Rice v. Cayetano, 528 U.S. 495 (2000) (No. 98-818).

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the United States District Court for the District of Hawaii, °5

claiming the OHA voting scheme violated both the Fourteenthand Fifteenth Amendments of the U.S. Constitution."°6

The district court upheld Hawaii's voting scheme, relying inlarge measure on the Supreme Court's decision in Morton v.Mancari°7 and its progeny.0 The district court applied rationalbasis review to Hawaii's voting law, reasoning that the law wouldnot violate the Constitution if it was rationally tied to the fulfill-ment of the unique obligation to the Native Hawaiians."°9

In Mancari, non-Indian employees of the Bureau of Indian Af-fairs ("BIA") challenged its hiring preference, which was designedto give Native Americans greater participation in their own self-government." 0 The plaintiffs in Mancari argued that the prefer-ence violated the anti-discrimination provisions of the Equal Em-ployment Opportunity Act of 1972."' The Supreme Court rejectedtheir argument, finding that there is "a special relationship" be-tween the United States and the Indian tribes, and that the ple-nary power of Congress to legislate with respect to the tribes isfound in the Indian Commerce Clause of the United States Con-stitution.1

2

105. Rice, 528 U.S. at 510.106. Id.107. 417 U.S. 535 (1974).108. See, e.g., County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985); Wash-

ington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658(1979); Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439U.S. 463 (1979); Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977); N. CheyenneTribe v. Hollowbreast, 425 U.S. 649 (1976); Moe v. Confederated Salish & Kootenai Tribes,425 U.S. 463 (1976); Rupert v. United States Fish & Wildlife Serv., 957 F.2d 32, 34-35 (1stCir. 1992) (per curiam).

109. See Rice v. Cayetano, 963 F. Supp. 1547 (D. Haw. 1997).110. See Morton v. Mancari, 417 U.S. 535, 538-39 (1974).11L Id. The operative provision of the Equal Employment Act is found at 42 U.S.C. §

2000e-16(a) (1994).112. Mancari, 417 U.S. at 551-52. The Indian Commerce Clause provides that "[tihe

Congress shall have the power... [to regulate commerce ... with the Indian tribes." U.S.CONST. art. I, § 8, cl. 3. The Mancari Court also identified the treaty making power as an-other source of the federal government's power over Indian affairs. See Mancari, 417 U.S.at 552. The Treaty Clause reads, "[The President] shall have Power, by and with the Ad-vice and Consent of the Senate, to make Treaties." U.S. CONST. art. II, § 2, cl. 2. But seePhilip P. Frickey, Adjudication and Its Discontents: Coherence and Conciliation in FederalIndian Law, 110 HARV. L. REV. 1754, 1761 (1997) ("I have suggested that.., the Courtimplicitly embraced the notion that power over Indian affairs is an unwritten, inherentpower of national sovereignty necessitated by the colonial nature of the United States.").

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While acknowledging that Native Hawaiians do not enjoy thesame "special relationship" with the federal government as In-dian tribes, the district court drew a parallel between the statusof Native Americans and the "trust relationship" Congress im-pliedly created with the Native Hawaiians under the HHCA."'Thus, the district court reasoned, Mancari controlled since thepreferential classifications in Mancari and Rice, while faciallyrace-based, were actually rooted in legal or political status.1 4

Rice argued that Mancari did not apply since Native Hawai-ians are not an organized tribe, but simply a racial class." 5 Assuch, he argued that the state of Hawaii could not create a tribeamong the "Native Hawaiians" and "invest it with powers of self-government.""6 In making this argument, which the SupremeCourt would later find compelling,"7 Rice relied on Washington v.Confederated Bands & Tribes of the Yakima Indian Nation, " 8 inwhich the Court held that only the federal government had thepower to enact legislation singling out Indians for preferentialtreatment and that the states do not enjoy the same unique rela-tionship with the Indians."'

Noting that legislation based upon racial classifications is con-stitutionally suspect under the Equal Protection Clause andshould be viewed under strict scrutiny, 2 ° the district courtpointed out that, where Native Americans are concerned, the Su-

113. See Rice, 963 F. Supp. at 1552-53; see also Keaukaha-Panaewa Cmty. Ass'n v.Hawaiian Homes Comm'n, 739 F.2d 1467, 1472 (9th Cir. 1984) (noting that Congress owesthe Native Hawaiians a "trust obligation" as a "compact with the United States").

114. See Rice, 963 F. Supp. at 1554.115. Id. at 1549.116. Id. at 1555.117. See Rice v. Cayetano, 528 U.S. 495, 518-22 (2000).118. 439 U.S. 463 (1979).119. Id. at 500-01. Actually, the Court in Yakima, while recognizing that states gener-

ally do not have the same special relationship with Indians that the federal governmenthas, nonetheless concluded that because the state law at issue was enacted "in response toa federal measure" intended to achieve the result accomplished by the challenged statelaw, the state law itself need only "rationally furthe[r] the purpose identified by the State."Id. (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (per cu-riam)).

120. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) (holdingthat all governmental programs with race-based preferences designed to benefit minori-ties, including Native Americans, must be subject to strict scrutiny). As discussed infraPart V, strict scrutiny requires that the government show that a particular law is nar-rowly tailored to achieve the compelling interest asserted.

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preme Court has applied the more relaxed rational basis analy-sis. 121 To pass strict scrutiny analysis, a program must serve acompelling state interest and must be narrowly tailored toachieve that interest.122 Under the more lenient rational basistest, however, a state program need only be rationally tied to theadvancement of an asserted governmental interest.12 3

The court cited Adarand Constructors, Inc. v. Pena,'24 a land-mark decision in which the Supreme Court held that all govern-ment programs with race-based preferences would be subject tostrict scrutiny.125 Adarand led some commentators to concludethat all legislation designed to benefit Native Hawaiians wouldface strict scrutiny in equal protection challenges. 126 Finding thestatus of Native Hawaiians equivalent to that of Native Americantribes, however, the district court applied rational basis reviewand concluded there was a rational relation between the OHAvoting scheme and Hawaii's interest in using revenues from theOHA-administered land trust for the improvement of Native Ha-

127waiians.

Thus, the district court found that Hawaii had simply limitedthe electoral franchise to the beneficiaries of the OHA's pro-grams-the indigenous people who were the subjects of the trustobligation. 2

1 More specifically, the district court held that theOHA was enacted in response to federal legislation designed toimprove the lives of Native Hawaiians and that the OHA's votingprovisions were passed pursuant to the HHCA.129 The districtcourt concluded that Hawaii "had merely enacted a reasonable

12L Rice, 963 F. Supp. at 1550; see also Morton v. Mancari, 417 U.S. 535, 555 (1974)(holding that with respect to Native American tribes, race-conscious legislation is validunder the less stringent rational basis test).

122. See, e.g., Adarand, 515 U.S. at 235; City of Richmond v. J.A. Croson Co., 488 U.S.469, 505 (1989).

123. See Rice, 528 U.S. at 531-32 (citing Morton v. Mancari, 417 U.S. 535, 554-55(1974)).

124. 515 U.S. 200 (1995).125. Id.126. See Benjamin, supra note 19. But cf. Frickey, supra note 112; Van Dyke, supra

note 19.127. See Rice, 963 F. Supp. at 1555.128. Id.129. Id. Consequently, the legislation would be upheld if it could be tied rationally to

the fulfillment of the federal government's unique obligation to Native Hawaiians. Id.

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method to satisfy its obligation to utilize a portion of the [reve-nues] ... for the betterment of Native Hawaiians."3 °

2. The Ninth Circuit

In a less exhaustive opinion, the Ninth Circuit affirmed thedistrict court's ruling. 3' The circuit court likewise reasoned thatif the land trust was properly set aside for Native Hawaiians, thestate properly established the OHA to administer the trust, andthe OHA was governed by trustees whose members were Hawai-ian, it followed that the state might rationally conclude that Ha-waiians, as the group to whom the trust obligations ran, shouldbe the group to elect the trustees. 2

The circuit court further held that even if Adarand applied, theOHA voting scheme would survive strict scrutiny because theclassification was based on the "special trust relationship" be-tween Hawaii and the Native Hawaiians. 3' However, the courtfound that Adarand did not apply for two reasons: first, the OHAvoter restriction was not primarily racial in context, and second,the eligibility requirement in Rice was not a preference of the sortat issue in Adarand 34

The court seemed to construe Adarand as a narrowly held af-firmative action decision, not of the sort that should control inRice. Rather, the Ninth Circuit viewed the OHA voting restrictionas analogous to the landowner limitation at issue in Salyer LandCo. v. Tulare Lake Basin Water Storage District.35 As discussedin Part II.B., the Salyer line of cases are referred to as "specialpurpose district" cases in which courts have upheld voting limita-tions applied to groups on whom a particular election has a dis-proportionate impact when compared to the population atlarge.

36

130. Id.131. See Rice v. Cayetano, 146 F.3d 1075, 1076 (9th Cir. 1998), rev'd, 528 U.S. 495

(2000).132. Id. at 1079.133. Id. at 1082.134. Id.135. Id. (citing Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719

(1973)).136. Salyer, 410 U.S. at 733. In Salyer, the Supreme Court upheld a voter qualification

statute which restricted voting to landowners only and apportioned voting power for direc-

HAWAII STATUTE

3. The Supreme Court

a. The Majority Opinion

Thus, twice defeated, Rice appealed to the Supreme Court.131

The plight of Native Hawaiians was far from settled. 38 In light ofthe fact that no other state program resembled Hawaii's, the caseraised broad questions about making race a condition of eligibilityfor public benefits. 139 There were, of course, issues of great mo-ment and difficulty with which the Court could grapple, not theleast being whether the Court would view Rice through the lensof Adarand and apply strict scrutiny, or whether Rice should bedecided as a "special purpose district" case of the sort in Salyer.4 °

Interestingly, the Court chose neither path.

Rather than squarely evaluate the merits of Rice's claims, theCourt took steady aim at Hawaii's three principal defenses of itsvoting law and rejected each one.' The majority avoided ana-lyzing the case under the Fourteenth Amendment's equal protec-tion guarantee, an approach that could have had much broaderimplications for government programs that confer benefits on thebasis of race." Instead, the Court viewed the OHA voting schemeas an affront to the Fifteenth Amendment, holding that there isno such thing as benign discrimination.

The Court announced that it would not decide whether Con-gress may treat Native Hawaiians as it does Indian tribes, refer-ring to such a consideration as "difficult terrain."' Moreover, theCourt rejected the relevance of Mancari, holding that to extendMancari to Rice would be to say that Congress could authorize astate to create a voting scheme limiting an electorate for its pub-

tors of the water district upon the assessed valuation of the landowner's property. Id. at724-25, 733.

137. Rice v. Cayetano, 528 U.S. 495, 511 (2000).138. Compare Van Dyke, supra note 19, with Benjamin, supra note 19.139. See Greenhouse, supra note 14.140. Id.14L Rice, 528 U.S. at 517-23.142. By deciding the case solely under the Fifteenth Amendment, the Court avoided

having to determine whether Adarand mandated that strict scrutiny be applied in allcases where race is used as a pretext for preferential treatment in government programs.

143. See Linda Greenhouse, Justices Void Hawaii Setup That Limits a Vote by Race,N.Y. Tn Es, Feb. 24, 2000, at A16.

144. Rice, 528 U.S. at 519.

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lic officials to a racial class, to the exclusion of all non-members ofthat class.'45 At the core of the Court's analysis was the fact thatthe non-Indian plaintiffs in Mancari were ineligible for the Bu-reau's hiring preferences not because they were non-Indian, butbecause they were not part of a "quasi-sovereign" tribe that en-joyed a "special trust relationship" with the federal govern-ment.4 ' The OHA elections, by contrast, were an affair of theState of Hawaii.'47 Thus, "[tihe validity of the voting restriction[was] the only question before" the Court." It concluded that toapply Mancari to Rice would essentially permit a state to "fenceout whole classes of its citizens from decision making in criticalstate affairs."1

The Court wasted no time dispensing with Hawaii's claim thatthe OHA voting scheme was sustainable under the line of "specialpurpose districts" cases such as Salyer.5 ' The Court held that theSayler decision did not suggest that compliance with the one per-son-one vote requirement of the Fourteenth Amendment excusedcompliance with the Fifteenth Amendment. 5' In other words,Salyer did not implicate the Fifteenth Amendment.

Turning to Hawaii's final argument-that the voting restric-tion did no more than ensure an alignment of interests betweenfiduciaries and beneficiaries of a trust and that the restrictionwas not based on race-the Court pointed out that while therevenues from the trust were statutorily designated for "NativeHawaiians," both Native Hawaiians and Hawaiians were allowedto vote.'52 The Court concluded that the restriction created ratherthan eliminated a differential alignment between the trusteesand the so-called beneficiaries.' 53 The majority held that Hawaii'sargument foundered on even more basic grounds, namely the un-constitutional premise that citizens of a particular race are morequalified to vote on certain matters than others.5

145. Id. at 520.146. Id. (quoting Morton v. Mancari, 417 U.S. 535, 554 (1974)).147. Id.148. Id. at 521.149. Id. at 522.150. Id.151. Id.152. Id. at 523.153. Id.154. Id.

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b. The Concurrence

Justices Breyer and Souter concurred in the result,5 ' findingthat Hawaii's argument failed on two grounds: first, there was no"trust" for Native Hawaiians, and second, the electorate, as de-fined by statute, did not constitute a "tribe."'56 To accept that atrust existed under the Hawaii Admission Act, one had to recog-nize its clear language, which required that revenues from theceded lands were to benefit all Hawaiians as well as for the "bet-terment" of those who are native.'57 Justice Breyer argued thatthe OHA electorate, as defined by statute, accommodated far toomany groups to constitute anything analogous to a tribe.' Jus-tice Breyer made light of the fact that the actual provision defin-ing the class benefitting from the trust came from the HHCA.6 9

Justice Breyer also pointed out that the OHA was simply a spe-cial purpose branch of the state government, and thus, the Fif-teenth Amendment applied.'

c. The Dissent

Relying on three principles, Justices Stevens and Ginsburg ar-gued that the OHA voting provision did not violate either theFourteenth or the Fifteenth Amendment."6' "First, the FederalGovernment must be, and has been, afforded wide latitude in car-rying out its obligations arising from the special relationship ithas with the aboriginal peoples, a category that includes the na-tive Hawaiians.""6 2 In addition, Justice Stevens argued that thereexisted a fiduciary responsibility arising from the establishmentof a public trust for administering assets granted to it by the fed-

155. Id. at 524 (Breyer, J., concurring).156. Id. at 525 (Breyer, J., concurring).157. See HAW. CONST. art. XII, §§ 1-3; Rice, 528 U.S. at 525 (Breyer, J., concurring).158. Rice, 528 U.S. at 526 (Breyer, J., concurring).159. See id. at 525 (Breyer, J., concurring). For the definitions at issue in Rice, see su-

pra notes 95, 101, and accompanying text.160. Id. at 526 (Breyer, J., concurring).16L Id. at 527 (Stevens, J., dissenting).162. Id. at 529 (Stevens, J., dissenting). The dissent points out that there are more

than 150 laws passed by Congress that recognize Native Hawaiians as Native Americans.'By classifying native Hawaiians as 'Native Americans' for purposes of these statutes,Congress has made clear that native Hawaiians enjoy many of 'the same rights and privi-leges accorded to the American Indian, Alaska Native, Eskimo, and Aleut communities.'"Id. at 533-34 (Stevens, J., dissenting) (quoting 42 U.S.C. § 11701(19) (1994)).

20011


eral government for the benefit of Native Hawaiians.163 Finally,"there [was] simply no invidious discrimination present in [Ha-waii's] effort to see that indigenous peoples [were] compensatedfor past wrongs."164

Looking squarely to the Court's analysis in Mancari, JusticeStevens rejected the majority's application of strict scrutiny.'65

He argued instead that, when it comes to the exercise of Con-gress's plenary power in Indian affairs, the Court has on numer-ous occasions applied rational basis review when dealing withlegislation involving Indian preferences. 66

With respect to whether Native Hawaiians may be viewed as a"tribe," Justice Stevens suggested only that it would be ironic "toconclude that native Hawaiians are not entitled to special bene-fits designed to restore a measure of native self-governance be-cause they currently lack any vestigial native government-apossibility of which the history and the actions of this Nationhave deprived them."6 7

Justice Stevens rejected the majority's view that Congress didnot have the authority to delegate to the states the power to de-vise a voting scheme such as the OHA's. 68 He relied on Washing-ton v. Confederated Bands & Tribes of the Yakima Indian Na-tion,"'69 in which the Court held that a state law involvingpreferential treatment of Indians enacted in response to a federalmeasure needed only to "'rationally further the purpose identifiedby the State.""7 Since the OHA voting scheme was merely in-tended to implement the wishes of the federal government, it nec-essarily survived the rational basis review by promoting the self-government of Native Hawaiians. 7'

163. Id. at 529 (Stevens, J., dissenting).

164. Id. (Stevens, J., dissenting).165. See id. at 534 (Stevens, J., dissenting).166. Id. at 531-32 (Stevens, J., dissenting) (stating that "as 'long as the special treat-

ment can be tied rationally to the fulfillment of Congress' unique obligation towards theIndians, such legislative judgments will not be disturbed'") (quoting Morton v. Mancari,417 U.S. 535, 545-55 (1974)).

167. Id. at 535 (Stevens, J., dissenting).168. Id. at 537 (Stevens, J., dissenting).169. 439 U.S. 463 (1979).170. Rice, 528 U.S. at 537 (Stevens, J., dissenting) (quoting Mass. Bd. of'Ret. v. Murgia,

427 U.S. 307, 314 (1976) (per curiam)); see also Yakima, 439 U.S. at 500-501.171. Rice, 528 U.S. at 538 (Stevens, J., dissenting).

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Justice Stevens rejected Rice's Fifteenth Amendment challengeby arguing that while "[a]ncestry can be a proxy for race,"1 7 2 onemight also conclude that one's ancestry does not necessarily de-termine one's apparent or acknowledged race today.'73 The OHAeligibility requirement was a function of lineal descent, not theblood-based characteristics of a particular Hawaiian resident. 74

V. BEHIND RICE'S LEGAL CURTAIN

Viewed broadly, the body of law concerning Native Hawaiiansand Native Americans generally involves two approaches: oneemphasizing the linkage between law and deprivation,'75 and an-other, more optimistic approach, focusing on tribal survival. 7 6

The law/deprivation approach is perhaps best demonstrated inJohnson v. McIntosh, 7 the early landmark decision in whichChief Justice John Marshall held that the "discovery" of NorthAmerica meant the "conquest" of North America, and conse-quently, the law of the conqueror prevailed over the law of theconquered.

7 1

Alternatively, the "tribal survival" approach is most clearly re-flected in cases such as Mancari. The Mancari decision recog-nized the basic historical truth that now, over five centuries sinceEuropeans first made contact with what is now the continentalUnited States, and more than two centuries since the West beganits incursion into Hawaii, colonization remains incomplete. 79 Thefederal government today recognizes more than 500 NativeAmerican tribes,8 ° according them a variety of self-governmentalpowers.' 8 '

Like the civil rights cases of the 1950s and 1960s, there is a

172. Id. at 514.173. Id. at 539 (Stevens, J., dissenting).

174. Id. at 541 (Stevens, J., dissenting).175. See Frickey, supra note 112, at 1754-55.176. See id. at 1755.177. 21 U.S. (8 Wheat.) 543 (1823).178. See id. at 588-91.179. See, e.g., L. Scott Gould, The Congressional Response to Duro v. Reina: Compro-

mising Sovere4nty and the Constitution, 28 U.C. DAvIS L. REV. 53, 58 (1994).180. Id.18L See, e.g., United States v. Wheeler, 435 U.S. 313, 323-26 (1978).

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remedial element inherent in Native American law." 2 It seemsclear, for instance, that the courts and Congress have come a longway from Marshall's "divide and conquer" holding in Johnson.Indian tribes have retained elements of "quasi-sovereign"authority ever since they ceded their lands to the United Statesand announced their dependence on the federal government.' 13 Asrecognized citizens and residents of the United States, Indiansare endowed with the rights, privileges, and immunities equal tothose enjoyed by all other U.S. citizens.8 4 Moreover, Indians aregiven special preference for certain types of employment,'85 andCongress has enacted legislation to ensure maximum NativeAmerican participation in educational services and other pro-grams benefitting Indian communities so the needs of NativeAmericans will be met more immediately. 6

A. The Special Relationship Doctrine

The United States Constitution allocates to Congress the ple-nary power to legislate with respect to Indian affairs.'8 7 As earlyas Johnson v. McIntosh, 8 the Court defined "Indians" or "tribes"as "original inhabitants" or "natives"' 89-that is, those indigenouspeople inhabiting the New World before the arrival of the firstEuropeans. Thus, since the beginning of North American coloni-zation, the "federal power to regulate and protect the Indians andtheir property... has been recognized." 9 '

Congress's plenary power to legislate with respect to Indians,or Native Americans, derives from at least four constitutional

182. Native Americans have been accorded numerous preferences over other Americancitizens. See generally Washington v. Washington State Commercial Passenger FishingVessel Ass'n, 443 U.S. 658 (1979) (granting tribe preferential fishing rights); Moe v. Con-federated Salish and Kootenai Tribes of the Flathead Reservation, 425 U.S. 463 (1976)(granting tribes immunity from state taxation); Antoine v. Washington, 420 U.S. 194(1975) (granting tribe preferential hunting rights).

183. See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).184. See Acosta v. County of San Diego, 272 P.2d 92, 98 (Cal. Ct. App. 1954).185. See Morton v. Mancari, 417 U.S. 535 (1974).186. See 25 U.S.C. § 450a (1994).187. See Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S. 520, 531 n.6 (1998);

United States v. Wheeler, 435 U.S. 313, 319 (1978); Mancari, 417 U.S. at 551-552.188. 21 U.S. (8 Wheat.) 543 (1823).189. Id. at 572-74.190. Bd. of County Comm'rs v. Seber, 318 U.S. 705, 715 (1943).

HAWAII STATUTE

clauses: the Indian Commerce Clause, 9' the Treaty Clause,'92 theProperty Clause,'93 and the Debt Clause.'94 As the Court in Man-cari noted, "[tihe plenary power of Congress to deal with the spe-cial problems of Indians is drawn both explicitly and implicitlyfrom the Constitution itself."'95 The Mancari Court echoed theCourt's insistence three decades prior that Congress's wideauthority to govern Indian affairs "cannot be doubted."'96

Indeed, today an entire title of the United States Code-Title25-is devoted to "Indians," and in virtually every other title ofthe Code, Indians and other North American "natives" are singledout for special treatment in all manner of areas."'

While there is no legal duty incumbent upon Congress to re-dress the wrongs committed by the West against the Indians, theSupreme Court has steadfastly held that the federal governmentmay make amends as its judgment dictates.9 8 Underscoring theCourt's view that the judiciary should take an active role in re-mediation efforts toward Indians for past wrongs, Justice Jack-son, concurring in Northwestern Bands of Shoshone Indians v.United States,'99 wrote:

The generation of Indians who suffered the privations, indignities,and brutalities of the westward march of the whites have gone to theHappy Hunting Ground, and nothing that we can do can square theaccount with them. Whatever survives is a moral obligation restingon the descendants of the whites to do for the descendants of the In-dians what in the conditions of this twentieth century is the decentthing.

200

While it is true that both Congress and the Court have referred

191. U.S. CONST. art. I, § 8, cl. 3; see, e.g., Venetie, 522 U.S. at 531 n.6.192. U.S. CONST. art. 11, § 2, cl. 2; see, e.g., McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 172 n.7 (1973).193. U.S. CONST. art IV, § 3, cl. 2; see, e.g., United States v. Kagama, 118 U.S. 375, 379-

80(1886).194. U.S. CONST. art I, § 8, cl. 1; see, e.g., United States v. Sioux Nation of Indians, 448

U.S. 371, 397 (1980).195. Mancari, 417 U.S. at 551-52.196. Board of Comm'rs of Creek County v. Seber, 318 U.S. 705, 715 (1943).197. See, e.g., Native Hawaiian Education Act, 20 U.S.C. § 7902(13) (1994).198. See Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335

(1945).199. 324 U.S. 335 (1945).200. Id. at 355 (Jackson, J., concurring).

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to the Native American Indians in terms of race,2"' the Court hasnevertheless held that its decisions "leave no doubt that federallegislation with respect to Indian tribes, although relating to In-dians as such, is not based upon impermissible racial classifica-tions."2 °2 To be sure, the Court has never suggested that legisla-tion with preferences for Indians are "race-based" within themeaning of the Civil War Amendments. Put simply, the mere factthat the Thirteenth, Fourteenth and Fifteenth Amendments havenot, since their adoption, circumscribed Congress's plenary powerto legislate in Indian affairs begs the conclusion that the term"raced-based" has nothing at all to do with race within themeaning of those amendments.

In fact, the Court, in Washington v. Confederated Bands &Tribes of the Yakima Indian Nation, expressly held that "the ar-gument that [Indian] classifications are 'suspect' [is] an untenableone."" 3 As of now, the Court's position that racial classificationsexpressing a preference for Indians are not suspect has remainednothing short of unshakeable.

Or has it, in light of Rice? Before turning to the probable im-pact of the Rice decision, discussed in Part VI, it is helpful to ex-plore the implications of the Court's unwillingness to considerwhether Congress may treat Native Hawaiians as it does the In-dian tribes.

First, the Court's refusal to consider whether Native Hawai-ians enjoy a "special relationship" with the federal government isdisingenuous at best. The Court, after all, suggested that NativeHawaiians may "have a status like that of Indians in organizedtribes, and that [Congress] may, and has, delegated to the State abroad authority to preserve that status."2 °4 As Justice Breyer

201. See, e.g., United States v. Candelaria, 271 U.S. 432, 442 (1926) ("'Indian tribe...[refers to] a body of Indians of the same or similar race." (emphasis added) (quoting Mon-toya v. United States, 180 U.S. 261, 266 (1992))); United States v. Rogers, 45 U.S. (4 How.)567, 573 (1846) (tribe "does not speak of members of a tribe, but of the race generally,-ofthe family of Indians" (emphasis added)).

202. United States v. Antelope, 430 U.S. 641, 645 (1977).203. 439 U.S. 463, 501 (1979). For more on the Court's insistence that racial classifica-

tions with respect to Indians are not "suspect" or "impermissible," see Washington v.Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979);Yakima, 439 U.S. at 500-02; Antelope, 430 U.S. at 645-46; Delaware Tribal Bus. Comm. v.Weeks, 430 U.S. 73, 85-90 (1977); Moe v. Confederated Salish and Kootenai Tribes, 425U.S. 463, 479-80 (1976); Fisher v. Dist. Court, 424 U.S. 382, 390-91 (1976).

204. Rice v. Cayetano, 528 U.S. 495, 518 (2000).

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noted glibly in his concurrence, "[the Court] assumes without de-ciding that the State could 'treat Hawaiians or native Hawaiiansas tribes.' 2 °5

The silent assumption to which Justice Breyer referred findsample support in the fact that Congress has enacted a myriad oflaws recognizing a special relationship between the federal gov-ernment and the Native Hawaiians.0 6 If indeed the majorityplaced the cart before the horse-that is, decided the case in ad-vance of any meaningful consideration of Native Hawaiians'status-the horse, then, is most certainly the laws referencedabove. The majority's silence on this issue clearly ignores the re-ality the Ninth Circuit recognized: the OHA voting restriction

is rooted in historical concern for the Hawaiian race, going back atleast to the [HHCA], carried through statehood when Hawaii ac-knowledged a trust obligation toward Native Hawaiians as a condi-tion of admission to the union, and on to 1993, when Congresspassed a Joint Resolution "apologiz[ing] to Native Hawaiians on be-half of the people of the United States."207

The Rice majority turned a blind eye to the scores of instancesin which Congress has included "Native Hawaiians"-which ithas defined as any descendant of the Islands' inhabitants prior to1778, without regard to blood quantum-in statutory programsbenefitting indigenous people nationwide.2 °s Congress has repeat-edly affirmed the "special trust" relationship the federal govern-ment enjoys with the Native Hawaiians and has specifically rec-ognized Hawaiians as a "distinct and unique indigenouspeople."20 9

As amici for Hawaii crisply analogized the dilemma, under theterms of the HHCA, the "benefits conferred by... the trust ...are no more a racial classification than the law providing com-pensation to Japanese internees during World War II. "

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205. Id. at 524 (Breyer, J., concurring) (quoting Rice, 528 U.S. at 519).206. See, e.g., Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.

at 673; Antelope, 430 U.S. at 645-47; Weeks, 430 U.S. at 84-85; Moe, 425 U.S. at 479-80;Fisher, 424 U.S. at 390-91; see also supra note 103.

207. Rice v. Cayetano, 146 F.3d 1075, 1080 (9th Cir. 1998) (quoting Apology Resolution,107 Stat. 1510 (1993)).

208. See supra note 103.209. 20 U.S.C. § 7902(1), (10) (1994); 42 U.S.C. § 11701(1), (13), (15), (16), (18) (1994).210. Brief of Amici Curiae Hou Hawaiians and Maui Loa, Native American Benefici-

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B. Power Struggle: The Feds v. the State

The Court was adamant in holding that the OHA is wholly anaffair of the state, and that Congress may not delegate to thestates the power to enact laws fulfilling their trust obligations toNative Americans.21' The Court held flatly, "Congress may notauthorize a State to create a voting scheme of this sort."212 TheCourt relied on Yakima for support, but the Court in Yakima,while recognizing that states generally do not have the same spe-cial relationship with Indians as the federal government, uphelda state law enacted to further a federal measure.213

In that case, the Yakima Indian Nation challenged a law thatextended the state of Washington's "jurisdiction over Indians andIndian territory within the State."214 Rejecting the Yakima IndianNation's equal protection challenge to the law, the Court recog-nized that the "[sitates do not enjoy th[e] same unique relation-ship with Indians [as the federal government]. " '5 The Court,however, was careful to articulate that the states may legislate inIndian affairs if the legislation is made pursuant to a federallaw.2"6 Specifically, the law at issue in Yakima was not anotherstate law per se, but "was enacted in response to a federal meas-ure explicitly designed to [deal with the Indians.]"2 7 To be sure,Hawaii's voting scheme fell within the context of Yakima, since itwas enacted pursuant to the federally enacted HHCA.1 8

C. The "Tribal" Threshold and its Ambiguities

Crucial to the analysis of the Rice decision was the Court's de-termination that Mancari was not controlling. The Court's rejec-tion of Mancari's relevance to the facts of Rice reflects the Court'sexpress abrogation of the need to determine whether Native Ha-

aries at 8, Rice, 528 U.S. 495 (No. 98-818).211. See Rice, 528 U.S. at 536 (Stevens, J., dissenting).212. Id. at 519.213. See Washington v. Confederated Bands & Tribes of the Yakima Indian Nation,

439 U.S. 463, 500-01 (1979).214 Id. at 465.215. Id. at 501.216. Id.217. Id.218. See Respondent's Brief at 6-7,Rice, 528 U.S. 495 (No. 98-818).

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waiians enjoy the same special relationship with the federal gov-ernment as the Indians. Putting aside for the moment JusticeBreyer's barb that the majority assumed what it chose not to de-cide,219 a brief analysis of Mancari, as it relates to the "tribalthreshold" requirement, is important.

In Mancari, the Court rested its opinion on, inter alia, the "spe-cial relationship" doctrine discussed in Part IV.A. Most impor-tantly, the Court found it significant that the Indians in Mancariwere "tribal" in nature.22

' This "tribal" classification, which sug-gests that organization and structure inhere in Indian culture,accomplished two important things for the Rice Court's calculus.First, it transformed the Indians into quasi-political entities, notracial bodies, thus negating any challenge that the Bureau's pref-erence was rooted in a "racial," and therefore "suspect," classifi-cation.22' Second, the Indians' "tribal" status supplied the criti-cal link to the Indian Commerce Clause, which provides Congresswith the power to "regulate commerce... with the IndianTribes."222

While it is true that the Native Hawaiians are not a federallyrecognized tribe, the Court in Rice took the short view of history,and an even shorter view of existing law by deciding the casesolely on Fifteenth Amendment grounds without giving proper at-tention to the equal protection guarantee of the FourteenthAmendment. It would seem that an appropriate equal protectioninquiry would have compelled the Court to determine just whatstatus Native Hawaiians have.

The Mancari Court upheld the BIA's preference because of thefederal government's special relationship with the Indians, notbecause the Indians were tribal in nature. The Court focused onthe Indians' tribal status only to the extent that the preferencechallenged included as a requirement for eligibility that benefici-aries be members of "federally recognized tribes."223 Indeed, thatwas the express language of the law.224

219. Rice, 528 U.S. at 524 (Breyer, J., concurring).220. Morton v. Mancari, 417 U.S. 535, 551 (1974).221. Id.222. U.S. CONST. art. I, § 8, cl. 3 (emphasis added).223. Mancari, 417 U.S. at 554 n.24.224. Id.

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The "tribal membership" requirement was not, however, theprincipal ground on which the Court rested its holding. Rather,the Mancari Court recognized the "unique legal status of Indiantribes under federal law and upon the plenary power of Congress,based on... the assumption of a 'guardian-ward' status, to legis-late on behalf of federally recognized Indian tribes."225

Indeed, the scope of Mancari is as narrow as the issue in Rice.In Mancari, as in Rice, the purpose of the preference was to giveindigenous people, who historically had been deprived of land andself-determination, greater participation in their own self-government, and to advance the government's trust obligations.226

Thus, in Rice the Court misapprehended-if not plainly mis-read-its prior logic in Mancari. Tribal membership was not thethreshold issue in Mancari; rather, it was the special relationshipdoctrine.227

As such, one could construe Rice as overruling Mancari. TheRice majority adamantly held that Mancari was not controllingsince the Indians in Mancari had a special relationship with thegovernment, and the Native Hawaiians in Rice did not.228 This isclearly not the case, if one is to place any stock in existing law.229

But Mancari is itself an interestingly flawed decision in atleast two respects.' First, while the Mancari Court held that theplenary power of Congress over Indian affairs was rooted in theIndian Commerce Clause,231 in United States v. Kagama,232 theCourt expressly rejected the clause as the source of such awesomecongressional power.233 The Kagama Court's rejection of the In-dian Commerce Clause as the source of Congress's plenary powerover Indians would seem to dilute what little emphasis the Man-cari Court placed on "tribal membership."234 Second, that the

225. Id. at 551 (emphasis added); see also Respondent's Brief at 30, Rice, 528 U.S. 495(No. 98-818) (quoting Mancari, 417 U.S. at 551).

226. Mancari, 417 U.S. at 552.227. Id.228. Rice, 528 U.S. at 518.229. See supra note 103 and accompanying text.230. See Frickey, supra note 112, at 1763.231. Mancari, 417 U.S. at 552.232. 118 U.S. 375 (1886).233. Id. at 385.234. See Frickey, supra note 112, at 1763.

HAWAII STATUTE

"tribal" affiliation rendered the preference in Mancari "political"rather than "racial" is a fallacy since blood quantum was a "butfor" requirement of the preference. 235 Thus, it is difficult to squarethe majority's rejection of Mancari, where the preference wasrooted in a racial classification, with the ancestral classificationin Rice.

Of even greater significance to the Court's reasoning in Rice isthe issue it expressly chose not to ponder-whether Native Ha-waiians may be treated as Indian tribes. Specifically, Congresshas expressly excluded Native Hawaiians from the "tribal mem-bership" requirement. It "has extended to Native Hawaiians thesame rights and privileges accorded to American Indian, AlaskaNative, Eskimo, and Aleut communities."236 The Rice Court thusfailed to acknowledge the fact that it is the legal or politicalstatus of Native Hawaiians, not whether they are "tribal" entities,that determines whether they may be treated by the federal gov-ernment in the same way as Indian tribes.

To be sure, in light of Congress's express recognition that Na-tive Hawaiians enjoy the same special relationship with the fed-eral government as all other Native Americans, "'tribal status'...is a poor proxy for determining whether Congress may legislatewith respect to a particular indigenous group."237

Furthermore, the Court's refusal to consider Rice's FourteenthAmendment equal protection challenge provided an escape hatchthrough which it could avoid making the crucial determination ofwhether Native Hawaiians enjoy the same special relationshipwith the federal government as do the Indian tribes. As such, theRice decision is distinguished considerably from the Court's re-cent voting rights cases. Specifically, in Shaw v. Reno,2 38 theCourt struck down a North Carolina legislative map that pro-moted the interests of minority voters.23 9 Finding the electoral

235. See Mancari, 417 U.S. at 551. The employment preference at issue in Mancaribenefitted "qualified Indians." Id. at 538. The statute defined "Indians" as members of fed-erally recognized tribes and "all other persons of one-half or more Indian blood." Id. at 553n.24; see also Frickey, supra note 112.

236. 20 U.S.C. § 7902(13) (1994).237. Respondent's Brief at 31, Rice, 528 U.S. 495 (No. 98-818).

238. 509 U.S. 630 (1993).239. Id. at 642.

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map unconstitutional on its face, the Shaw Court decided thecase solely on the Fourteenth Amendment grounds.24 °

The distinction between Rice and Shaw is notable because thevoting condition in Shaw did not expressly impose racial condi-tions. Rather, the condition resulted in the disproportionate racialimpact of the legislative map as applied. In evaluating NorthCarolina's voting scheme, the Court looked to the more funda-mental equal protection inquiry that the Fourteenth Amendmentrequires.241 While the Congressional map at issue in Shaw wasnot facially race-based, like the scheme in Rice, it strains logic toassume, as the Rice Court did, that a law may offend the Fif-teenth Amendment without squarely implicating the Fourteenth.To the extent that the Fifteenth Amendment expressly protects aright embedded in the Fourteenth, the two are twin amendments.

The OHA voting restriction in Rice expressly required that theelectorate be limited to "Hawaiians" and "Native Hawaiians," asdefined by statute in terms of blood quantum.242 Consequently,the Rice Court was able to attack the scheme as a per se offenseto the language of the Fifteenth Amendment.243 For sure, steeringclear of Rice's equal protection challenge made it possible for theCourt to avoid having to tread "that difficult terrain"2 of deter-mining whether Congress-and by extension, the State of Ha-waii-could treat Native Hawaiians as it does the Indian tribes.Accordingly, the formula applied by the Rice Court comports withits recent drive against any and all programs designed to benefita particular racial class.24 5 Congress has not, as of yet, shared thissentiment.246

240. Id. at 640-41. The court stated:Drawing on the "one person, one vote" principle [of the Fourteenth Amend-ment], this Court recognized that "[t]he right to vote can be affected by a di-lution of voting power as well as by an absolute prohibition on casting a bal-lot."... It is against this background that we confront the question presentedhere.

Id. (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969)).241. Id. at 649.242. HAW. REv. STAT. § 10-2; see supra note 5.243. Rice, 528 U.S. at 523.244. Id. at 519.245. See Biskupic, supra note 17.246. See supra note 103 (listing a handful of the more than 160 laws that give prefer-

ences to Native Hawaiians and in which Congress has explicitly included "Native Hawai-ians" in its definition of "Native American").

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D. The Applicable Standard: The Problem of Strict Scrutiny

Before the decision in Rice, several commentators suggestedthat some doubt had been cast on whether the Court's decision inAdarand Constructors v. Pena"7 would force laws aimed at bene-fitting racial minorities to pass muster under strict scrutinyanalysis.2' That is, such a law would have to be narrowly tailoredto achieve a compelling governmental interest.249 Indeed, theCourt in Adarand premised its decision on one simple notion:"'[alny preference based on racial or ethnic criteria must neces-sarily receive a most searching examination.' 25

Adarand involved the question of what standard of reviewshould apply to congressionally enacted race-conscious set-asides.25' The plaintiff in Adarand was a white-owned construc-tion firm that submitted the lowest bid on a contract to supplyguardrails to a federal highway project in Colorado.252 Because ofa federal affirmative action program designed to give general con-tractors incentives to hire minority-owned subcontractors, the bidwent to a minority-owned firm.253

Wishing "to dispel the notion that strict scrutiny is 'strict intheory, but fatal in fact,"254 the Court nevertheless held that thegovernment bore the burden of proving that the affirmative ac-tion program was narrowly tailored to achieve its compelling in-terest in compensating for past discrimination. The Court re-manded the case back to the lower court in order to make thisdetermination.255 Writing for the majority, Justice O'Connor con-cluded that "whenever the government treats any person une-

247. 515 U.S. 200 (1995).

248. See Benjamin, supra note 19. But cf Frickey, supra note 112; Van Dyke, supranote 19.

249. See infra note 257 and accompanying text.

250. Adarand, 515 U.S. at 219 (quoting Fulilove v. Klutznick, 448 U.S. 448, 491(1980)).

25L Id.252. Id. at 205.253. Id. The federal regulation at issue in Adarand involved Disadvantaged Business

Enterprises ("DBE"s). See id. at 205. DBEs were minority-owned firms that qualified forspecial status under federal regulations. Id. at 206-09. Under the regulatory scheme, pri-mary contractors were not required to award contracts to DBEs, but were given a strongfinancial incentive by the federal government to do so (10% of the subcontract amount, or1.5% of the amount of the primary contract, whichever was less). Id. at 209.

254. Id. at 237 (quoting Fullilove, 448 U.S. at 519).255. See id. at 237-38.

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qually because of his or her race, that person has suffered an in-jury that falls squarely within the language and spirit of the Con-stitution's guarantee of equal protection."256

Adarand is important for three reasons. First, it stands for therule that both the federal and state governments must satisfy thesame strict scrutiny analysis for any race-based affirmative ac-tion program."' Second, the strict scrutiny rule spelled out inAdarand is not limited to minority set-asides; it applies to all do-mains, such as education admissions and employment.258 Finally,despite the seemingly broad sweep of Adarand, the Court sug-gested it may be willing to grant Congress greater deference thanit would a state or local government. 5 9 For instance, the Courtmight be more likely to accept congressional findings that therehad been discrimination in a particular domain, or at a particulartime in history, than it would from a state or local governmentalbody.

260

Of course, the question then remains: what does Adarand do toRice, or what should it have done? The answer, arguably, isnothing. Because the Rice Court struck down Hawaii's votingscheme solely on Fifteenth Amendment grounds, the Courtavoided any equal protection inquiry entirely.261 Had the Courtnot ignored Rice's Fourteenth Amendment equal protection chal-lenge, however, Adarand would most certainly have been impli-cated. Indeed, the very commentators who scratched their headsat the Adarand decision were clearly of the view that any chal-lenge to race-based preferences benefitting Native Hawaiianswould necessarily implicate the clear "strict scrutiny" rule setforth in Adarand.262

But there was, prior to the Rice decision, a polar view thatequal protection challenges to laws giving preferences to Native

256. Id. at 229.257. See id. at 235 ("Federal racial classifications, like those of a State, must serve a

compelling governmental interest, and must be narrowly tailored to further that inter-est.").

258. Id. at 240 (Thomas, J., concurring).259. Id. at 230.260. Id.261. See Rice v. Cayetano, 528 U.S. 495, 523 (2000).262. See, e.g., Benjamin, supra note 19, at 539 (arguing that in light of Adarand, if a

statutory "definition constitutes a racial classification.., all legislation treating NativeHawaiians specially is presumptively invalid").

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Hawaiians based on race would not implicate Adarand.263 Tothese commentators, either of two scenarios governed the fate ofthe Native Hawaiians in light of Adarand.2 ' One, Congress hadclearly articulated that there exists a special relationship be-tween the United States and the Native Hawaiian people.265 Asrecently as the 1993 Apology Resolution,266 Congress expresslystated that United States participation in the 1893 overthrow ofthe Hawaiian Monarchy violated "treaties between the two na-tions and... international law."26 Moreover, Congress was care-ful to note that "Hawaii also ceded 1,800,000 acres of crown, gov-ernment and public lands... without the consent of orcompensation to the Native Hawaiian people.., or their sover-eign government."268 Because of the wrongs committed againstthe Native Hawaiians by the United States-wrongs identical tothose committed against the Native Indians-Congress urged theUnited States "to support reconciliation efforts between theUnited States and the Native Hawaiian people."26 9

Thus, just as with the Indians in Mancari, Native Hawaiianswould be "judicially immunized" by the special relationship doc-trine from equal protection challenges based on racial classifica-tions.

The second, more complex analytical regime, sets forth the no-tion that if Adarand is to be construed broadly, the decision nec-essarily would have overruled scores of cases in which the Courtupheld racial preferences for IndiansY ° However, in Adarand,the Court made clear that it was reluctant to reopen issues "inwhich [it] found special deference to the political branches of theFederal Government to be appropriate."27' It had been arguedthat this "cryptic reference" by the Court suggested that it would

263. See, e.g., Van Dyke, supra note 19, at 100 (reasoning that because "courts have...ruled consistently that programs for Native Hawaiians should be examined using thesame level of review (rational basis) that applies to programs for other Native Americans,"any equal protection challenge of the sort in Rice would likely escape Adarand's grip).

264. See, e.g., id.265. Id. at 107.266. Apology Resolution, 107 Stat. 1510, 1513 (1993).

267. Id. at 1511.268. Id. at 1512.269. Id. at 1513.

270. Frickey, supra note 112, at 1766.271. Adarand Constructors v. Pena, 515 U.S. 200, 218 (1995).

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"be reluctant to upset longstanding arrangements, even thoughthey might arguably involve some discriminatory element."272

This latter view reasoned that challenges of the sort in Ricewould escape strict scrutiny because of Adarand's implied excep-tion to previous laws which gave preferences to Native Ameri-cans. This view does not resolve the fate of future legislation withpreferences for Native Hawaiians, or, for that matter, Native In-dian tribes.

In short, the Court left open the question whether strict scru-tiny applies to race-based preferences for Native Hawaiians. Byignoring out-of-hand Rice's Fourteenth Amendment equal protec-tion challenge to Hawaii's voting law, the Court left two criticalquestions for commentators and, more significantly, Native Ha-waiians to ponder. First, do the Native Hawaiians enjoy the samespecial relationship with the United States as the Native Ameri-cans? Second, what level of scrutiny should apply to laws thatgive preferences to Native Hawaiians? The answer to the secondquestion, of course, is wholly dependent upon the answer to thefirst. Sadly, the Court refused to offer any guidance on these im-portant matters.

VI. THE IMPACT

Limited as it was to the OHA voting scheme, it is likely theRice decision will have no immediate implications beyond Hawaii.It may well invite additional challenges to programs designed tobenefit Native Hawaiians, of which there are many, from pro-grams financed by the revenues from public land administered intrust for the Native Hawaiians, to tuition grants and home-steading rights.273

While the Rice majority was careful to say that "we assume thevalidity of the underlying administrative structure and trusts,without intimating any opinion on that point,"274 the decisionnevertheless suggests that Native Hawaiians do not, more than100 years after America's participation in the overthrow of theHawaiian monarchy, enjoy the same special relationship with the

272. Frickey, supra note 112, at 1766.273. See Greenhouse, supra note 143, at A16.274. Rice, 528 U.S. at 521-22.

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United States government as all other Native Americans. Indeed,the question remains whether Native Hawaiians even are NativeAmericans in the legal sense.

To be sure, the case has presented a call to politicians to intro-duce legislation that would expressly recognize Native Hawaiiansas indigenous people who enjoy a trust relationship with the fed-eral government and have a right to self-determination underfederal law.

In fact, on July 20, 2000, Senator Daniel Kahikina Akaka (D-HI), along with Senator Daniel K. Inouye (D-HI), introduced a billwhich, if adopted into law, would articulate once and for all theUnited States' policy toward Native Hawaiians.275 Specifically,the bill calls for Congress to recognize that "the Native Hawaiianpeople wish to preserve, develop, and transmit to future NativeHawaiian generations their ... political and cultural identity...and to achieve greater self-determination over their own af-fairs."276

If adopted into law, the bill would also provide that "the UnitedStates has recognized and reaffirmed the special trust relation-ship with the Native Hawaiian people through... the enactmentof the [Hawaiian Admission] Act."27 7 In addition, the bill wouldestablish within the Department of the Interior an Office of theSpecial Trustee for Native Hawaiian Affairs. 7

' Among the Trus-tee's duties would be to "effectuate and coordinate the specialtrust relationship between the Native Hawaiian people and theUnited States."27 9

Senator Akaka has stated the primary purpose behind the billas follows:

When the State of Hawaii was admitted into the Union in 1959, theprevailing Federal policy was the termination of Federal responsi-bilities related to America's native people and the delegation of thoseresponsibilities to the several states. Accordingly, the Hawaii Admis-sions Act provided that the State of Hawaii would assume a trust re-sponsibility for lands that had been set aside under Federal law in

275. S. 2899, 106th Cong. (2000).276. Id. § 1(15).277. Id. § 1(18)(A) (emphasis added).278. Id. § 4.279. Id. § 4(b)(1).

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1921 in Hawaii for the benefit of Native Hawaiians, and further pro-vided that the balance of other lands in Hawaii which were cededback to the State of Hawaii by the United States were required to beheld in a public trust for five purposes-one of which was the bet-terment of the conditions of Native Hawaiians.2

80

This proposed legislation would make clear that the indigenousnative people of the United States, American Indians, AlaskanNatives, and Native Hawaiians, have the same status under fed-eral law and policy-the right to self-determination and self-governance, and a federally recognized, government-to-government relationship with the United States.28 '

Alternatively, should Senator Akaka's bill not reach a vote, orotherwise vanish from the legislative blackboard, Hawaii couldopen the OHA elections to everyone, make the agency's trusteesboard-appointed rather than elected, or reorganize the OHA sothat it is no longer a state agency.28 2

Finally, there is of course the fear that the Rice ruling may un-dermine the special status of the Indian tribes, which, unlike theNative Hawaiians, conduct their own elections and have a myriadof programs with preferences based on race. Such fears should bequelled, however, by the Court's express language that in dealingwith preferences singling out members of Indian tribes for specialtreatment, the Court has repeatedly recognized that the prefer-ences were "'political rather than racial in nature.' 283

The Court drew a clear distinction between Hawaii's votingscheme and tribal preferences by reasoning that "[i] f a non-Indianlacks a right to vote in tribal elections, it is for the reason thatsuch elections are the internal affair of a quasi-sovereign."2" Thevoting scheme at issue in Rice, by contrast, involved an affair ofthe entire state of Hawaii. Yet, the ground on which this premiserests is misguided: the Court has expressly held that a state mayenact legislation with preferences so long as the law is made pur-

280. Senator Daniel K. Akaka, Statement Regarding Indian Affairs Hearing on S. 2899(Sept. 14, 2000), available at http://www.akaka2000.org/PRSeptl4.html.

281. Id.282. See Greenhouse, supra note 143.283. Rice v. Cayetano, 528 U.S. 495, 520 (2000) (quoting Mancari, 417 U.S. at 553

n.24).284. Id.

HAWAII STATUTE

suant to a congressional mandate.28 5

Thus, by the Court's reasoning, tribal Indian voting schemesare "immune" from judicial scrutiny because of the Indians' spe-cial relationship status with the federal government-a classifica-tion the Court, in spite of Congress, has yet to bestow upon theNative Hawaiians.

VII. CONCLUSION

The United States Supreme Court's decision in Rice is signifi-cant for five distinct reasons. First, Rice offers little in the way ofdefining what, if any, special relationship Native Hawaiians en-joy with the federal government. The Court avoided determiningwhether Native Hawaiians enjoy a special trust relationship ofthe sort that Native Americans do.286 Turning a blind eye to themore than 160 congressional laws that include "Native Hawaiian"in their definition of "Native American," the Court, as JusticeBreyer aptly noted in his concurring opinion, assumed withoutdeciding that Hawaii could treat Hawaiians or Native Hawaiiansas Indian tribes.287

Second, by rejecting Rice's Fourteenth Amendment equal pro-tection challenge, the Court abrogated an opportunity to an-nounce what level of scrutiny applies to government programsthat give preferences to Native Hawaiians. While one might as-sume that Adarand is a narrowly held affirmative action decisioninapplicable to a Hawaiian voting restriction, an alternativereading suggests Adarand should not apply at all to a law like theone at issue in Rice-a law which on its face so squarely violatedthe Fifteenth Amendment.

Still, Rice might seem to stand for the premise that any race-based legislation designed to benefit Native Hawaiians will beheld to strict scrutiny, not the more relaxed rational basis reviewstandard accorded legislation favoring Native Americans. To besure, this was the fear expressed by commentators in light ofAdarand.8 8 But as we have seen, Adarand and all its legal impli-

285. See supra Part IV.B.286. Rice, 528 U.S. at 518-19.287. Id. at 524 (Breyer, J., concurring).288. See Benjamin, supra note 19.

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cations with respect to raced-based preferences vanished from theinquiry once the Court held that it could "stay far off that difficultterrain"28 9 of determining whether Congress could treat NativeHawaiians as it does the American Indians.

Third, in Rice, the Court once again defined the Salyer line ofcases, and in so doing held those cases irrelevant to the facts ofRice."' Unlike the issues in the "special purpose district" cases,the Court held that Rice did not implicate the one-person, one-vote requirement of the Fourteenth Amendment. Had the Courtnot dispensed with Rice's equal protection challenge, however, itwould have had to clarify whether the reasoning behind theSalyer line of cases may extend beyond concerns surrounding theownership of real property to racial barriers in voting.

Fourth, the Rice decision is consistent with the Court's recent,and not so recent, line of Fifteenth Amendment cases thatsquarely target race-based conditions of voting. This seems whatthe Court wished the decision to stand for when it held, in what isthe "soul" of the case:

The State's position rests, in the end, on the demeaning premise thatcitizens of a particular race are somehow more qualified than othersto vote on certain matters. That reasoning attacks the centralmeaning of the Fifteenth Amendment ....

When the culture and way of life of a people are all but engulfed bya history beyond their control, their sense of loss may extend downthrough generations; and their dismay may be shared by manymembers of the larger community. As the State of Hawaii attemptsto address these realities, it must, as always, seek the political con-sensus that begins with a sense of shared purpose. One of the neces-sary beginning points is this principle: The Constitution of theUnited States, too, has become the heritage of all the citizens of Ha-waii.291

Finally, the Rice decision has galvanized the Hawaiian delega-tion into political action. Senator Akaka has introduced a bill thatwould officially recognize that "the Native Hawaiian people wishto preserve, develop, and transmit to future Native Hawaiiangenerations their ... political and cultural identity... and to

289. Rice, 528 U.S. at 519.290. Id. at 522.291. Id. at 523-24.

HAWAII STATUTE

achieve greater self-determination over their own affairs."29 2 Moresignificantly, the bill calls for Congress to recognize the "specialtrust relationship between the Native Hawaiian people.... andthe United States."293 To be sure, such express Congressional lan-guage, coupled with existing law classifying Native Hawaiians asanalogous to the Indian tribes, would have made it much moredifficult for the Rice Court to reach the decision it did.

William E. Spruill

292. S. 2889, 106th Cong. § 1(15) (2000).293. Id. § 4.

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the fate of the native hawaiians: the special relationship

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